R v Puckeridge

[2000] NSWCCA 193

CITATION:	R v Puckeridge [2000] NSWCCA 193
FILE NUMBER(S):	CCA 60722/97
HEARING DATE(S):	19/05/00
JUDGMENT DATE:	5 June 2000
PARTIES :	Regina v Roy Robert Puckeridge
JUDGMENT OF:	Heydon JA at 1; James J at 2; Bell J at 51

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70012/96
LOWER COURT JUDICIAL OFFICER :	Ireland J

COUNSEL :	PG Berman - Crown GP Craddock - Appellant
SOLICITORS:	SE O'Connor - Crown TA Murphy - Appellant
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60722/97

Heydon JA
James J
Bell J

Monday 5 June 2000

REGINA v Roy Robert Puckeridge

JUDGMENT

1   HEYDON JA. I agree with James J

2   JAMES J: This is an appeal by Roy Robert Puckeridge against his conviction after a trial in the Supreme Court before Ireland J and a jury on a charge of murdering Patricia Merle Thomas at Northmead between 10 August 1995 and 22 August 1995.

3   This is not the first time this appeal has been before this Court. The appeal first came before this Court, differently constituted, in 1998. The Court then held, by majority, that the appeal should be allowed and the appellant’s conviction should be quashed, on the ground that the evidence at the trial was not capable of excluding a reasonable possibility that Mrs Thomas’ death had not been caused by an act of the appellant.

4   The High Court granted the Crown special leave to appeal from this decision of the Court of Criminal Appeal and on the hearing of the appeal to the High Court it was conceded by counsel for the respondent to that appeal, that is the present appellant, that the appeal to the High Court should be allowed. The High Court allowed the appeal, set aside the orders made by the Court of Criminal Appeal and remitted the present appellant’s appeal against conviction to the Court of Criminal Appeal for the hearing and determination of the other grounds of appeal relied on by the appellant.

5   At the trial and on the hearing of this appeal there was no dispute about any of the following facts. Mrs Thomas lived alone in a unit in a block of units at Northmead. In August 1995 the appellant also lived in a unit in the same block of units, which he shared with a man named Campbell. The appellant had formerly lived in another unit in the same block, which he had shared with a man named McIlroy. On 13 August 1995 Mrs Thomas attended a church service. On 20 September 1995 her body was found in a shallow grave in a garden near the unit occupied by McIlroy. On 18 August 1995 a plumber had repaired a pipe, which had been broken during the digging of the grave. Accordingly, it was clear that Mrs Thomas had died at some time between 13 August 1995 and 18 August 1995. By the time Mrs Thomas’ body was found on 20 September 1995, it had become seriously decomposed.

6   The Crown case that the appellant had murdered Mrs Thomas depended largely on the evidence of Campbell, including evidence of admissions which Campbell said had been made by the appellant, and evidence by other witnesses of admissions which they said the appellant had made to them. Having regard to the nature of the grounds of appeal now relied on, it is sufficient simply to give a brief outline of this evidence.

7   Before he gave evidence at the appellant’s trial, Campbell had pleaded guilty to being an accessory after the fact to the murder of Mrs Thomas. In his evidence at the trial, Campbell denied that he had himself killed Mrs Thomas. He said in evidence at the trial that one morning the appellant had told him that he, the appellant, had killed Mrs Thomas on the previous evening. Campbell did not believe the appellant but he went into Mrs Thomas’ unit on the following evening, in order to check. He saw Mrs Thomas’ body lying against a wall of her unit. There was blood coming from a wound on the back of her head. Mrs Thomas’ body remained lying in her unit for some time. The appellant then decided that her body should be buried and the appellant and Campbell dug the grave in the garden and buried the body. At the trial a strong attack was made by the defence on the reliability of Campbell’s evidence.

8   Evidence was also given in the Crown case by two prison informers named Hathaway and Leonard, who said that the appellant, while on remand after having been arrested and charged with the murder of Mrs Thomas, had made admissions to them that he had killed Mrs Thomas. The appellant had told each of these witnesses that he had not been alone when Mrs Thomas had been killed; he had been accompanied by Campbell. The appellant and Campbell had entered through a window of Mrs Thomas’ unit. When Mrs Thomas woke up, each of the appellant and Campbell had assaulted her. The appellant had dragged Mrs Thomas from her bed, bashed her head against a wall a number of times, until her head started bleeding, and had then strangled her.

9   It is apparent that Campbell’s evidence of what had allegedly happened differed in a number of respects from the prison informers’ evidence of what had allegedly happened.

10   The prison informers also gave evidence that the appellant had written out in his own handwriting an account of what the appellant said had really happened when Mrs Thomas was killed. The appellant had wanted Hathaway to use this written account as a script, for the purpose of enabling Hathaway to make false allegations against Campbell that Campbell had confessed to Hathaway that he had killed Mrs Thomas. This document written out by the appellant became an exhibit at the trial.

11   The appellant also wrote out in his own handwriting another document which became an exhibit at the trial. This further document purported to be a contract, whereby the appellant hired Hathaway and Leonard to kill Campbell in consideration of payment of the sum of $2,000.

12   At the trial a strong attack was made by the defence on the reliability of the evidence of Hathaway and Leonard.

13   Other evidence of admissions made by the appellant was given in the Crown case by other witnesses, including Mr McIlroy and his wife. A police officer gave evidence that, while he was searching a packet of cigarettes taken from the appellant, he observed the appellant attempting to hide Mrs Thomas’ bank keycard.

14   The appellant gave evidence in his own case at the trial. He said that one night Campbell, while drunk, had said words to the effect that he had it in mind to kill Mrs Thomas, that Campbell had gone out of the unit which he and the appellant shared, that Campbell had later returned to the unit and that after Campbell had returned he had said that he had killed Mrs Thomas. Subsequently, the appellant had assisted Campbell to dig the grave and bury Mrs Thomas’ body.

15   It is apparent that, by returning their verdict of guilty, the jury rejected the appellant’s account of the events leading up to the death of Mrs Thomas and were satisfied beyond reasonable doubt that the appellant had assaulted Mrs Thomas, before she died. In the remarks he made on sentencing the appellant, Ireland J made a number of findings of fact about the events which had led up to Mrs Thomas’ death. On the hearing of this appeal we were informed by counsel for the appellant that, for the purposes of the appeal against conviction, no concession was made about the correctness of Ireland J’s findings of fact. However, having regard to the nature of the grounds of appeal now relied on, which are based on alleged erroneous directions by the trial judge, it is unnecessary to make any further examination of the events leading up to Mrs Thomas’ death.

16   The outstanding grounds of appeal as stated in the notice of appeal are:-

“1. His Honour erred in his directions to the jury upon cause of death.
2. His Honour erred in failing to adequately direct the jury in relation to the appellant’s case.
3. His Honour erred in his directions to the jury upon the onus and standard of proof”.

17   Before proceeding to consider these grounds of appeal, it is necessary to refer at some length to the evidence given at the trial by two forensic pathologists Dr Ellis, who had performed the post mortem examination of Mrs Thomas’ body and who gave evidence in the Crown case, and Dr Collins, who gave evidence in the defence case.

18   Dr Ellis gave evidence that, when the body was exhumed on 20 September 1995, it had suffered significant decomposition. Dr Ellis found material within the skull cavity, which was separate from the brain and which was, in his opinion, blood. In Dr Ellis’ opinion, the medical cause of death was intracranial bleeding.

19   Dr Ellis observed a scar on Mrs Thomas’ head. This scar was the result of surgery Mrs Thomas had undergone ten or eleven years previously, in an unsuccessful attempt to repair a small aneurism. Dr Ellis explained that an aneurism is a “little ballooning out” or swelling of the wall of an artery at a place where there is a weakness in the wall.

20   An aneurism may leak or actually burst. A leaking or bursting of an aneurism may be, but is not necessarily, fatal. It may occur spontaneously, “for no reason which can be identified”. Dr Ellis said that, apart from a leaking or bursting occurring spontaneously:-

“Because there is a weakness in the wall, anything that, shall we say, increases the pressure of the blood inside or damages the wall itself may cause it to leak or burst. So, that increase of blood pressure may actually cause the aneurism to burst. The physical trauma to that area, by virtue of damage to an already weakened artery, may cause bleeding”.

21   According to notes which had been provided to Dr Ellis, Mrs Thomas had suffered from epilepsy and Dr Ellis, in conducting the post mortem examination, detected the presence of drugs of a kind used in the treatment of epilepsy. In cross-examination Dr Ellis said that he could not attribute death to epilepsy but he could not exclude the possibility that Mrs Thomas had had an epileptic fit at or around the time of death.

22   Towards the end of his evidence in chief Dr Ellis said that, in his opinion, the cause of death had been bleeding inside the head and that there were three possible explanations of the bleeding inside the head. Ireland J requested that these possible explanations be clearly defined. The following questions and answers then occurred:-

“Q. That there was bleeding in the brain as a result of some trauma to the head?
A. Yes.
Q. That there was bleeding in the brain which was the result of an aneurism bursting which was caused by some trauma to the head?
A. Yes.
Q. Or caused by high blood pressure as a result of what was going on at the particular time?
A. Yes.
Q. And the third reason could be, I take it, some spontaneous break of that aneurism in the head?
A. Yes”.

23   In regard to the third possible explanation, that is a spontaneous break of the aneurism, Dr Ellis said:-

“Yes, well, I can’t exclude it, but it would imply a connection. Aneurisms do burst and they do burst without apparent reason. I would, given the apparent or alleged trauma and obvious reason for getting high blood pressure, that is the argument and the activity, and the bleeding that has occurred at that time, it would seem to me reasonable to put them together. I cannot exclude the aneurism bursting without any obvious reason, but I believe that would be a coincidence”.
Later in his evidence Dr Ellis agreed with a suggestion that such a coincidence would be an “amazing” coincidence.

24   In cross-examination Dr Ellis said that he could not exclude the possibility that Mrs Thomas had been assaulted and had some time later died from natural causes, that is from a spontaneous breaking of the aneurism.

25   Dr Collins had not himself conducted any post mortem examination of Mrs Thomas’ body. He had, however, been provided with a copy of Dr Ellis’ post mortem report, transcripts of Dr Ellis’ evidence at the committal proceedings and at the trial, photographs of Mrs Thomas’ body, a copy of the appellant’s interview by the police and certain other material.

26   Dr Collins said in his evidence that, in his opinion, the cause of Mrs Thomas’ death “has been unascertained”. He was then asked by counsel for the appellant at the trial whether he had considered “possible causes of death” and he replied in the affirmative.

27   Dr Collins said that it could be argued that death was related to the presence in the cranial cavity of the blood detected by Dr Ellis, which could have been caused by the rupturing of the aneurism through natural causes. On the other hand, it could be argued that death was not related at all to the presence of blood in the cranial cavity but had been caused by “natural disease processes”. In this connection, Mrs Thomas had suffered from epilepsy and epilepsy can cause death. Other “natural disease processes” which can cause death are asthma and myocarditis, that is inflammation of the heart. Dr Collins concluded “all of those areas are possibilities… which… cannot be definitively excluded”.

28   Later in his evidence Dr Collins said that if the blood in the cranial cavity was related to a rupture of the aneurism, then that rupture could have occurred (1) spontaneously (2) through a sudden increase in the pressure of the blood passing through the aneurism or (3) from trauma to the head.

29   According to Dr Collins, one simply could not say what was the cause of the blood in the intracranial cavity or what was the cause of any rupture of the aneurism.

30   A Dr Kwan, who had been Mrs Thomas’ general practitioner, gave evidence. He had seen Mrs Thomas frequently and regarded her as “almost part of the family”. He confirmed that Mrs Thomas had suffered from epilepsy and that she had had an inoperable cerebral aneurism. Mrs Thomas had also suffered from a bipolar condition. Dr Kwan gave no evidence that Mrs Thomas had suffered from either asthma or myocarditis.

31   The passage in his Honour’s summing up on which the outstanding grounds of appeal are based was a short part of a longer passage, which was quoted in the written submissions of counsel for the appellant. This longer passage was as follows:-

“The death is described as arising in three alternative ways:
1. The trauma to the head which resulted in the intracranial bleeding.
2. The fright or fear over the assaults which caused a rise in blood pressure, resulting in rupture of the aneurism.
3. From natural causes or the spontaneous rupture of the aneurism, unassociated with actions of the accused or the accused with Campbell.
If you think that it was a reasonable possibility that it was number 3, that is to say from natural causes or from spontaneous rupture or epilepsy, unassociated with the actions of the accused or the accused with Campbell, then you must acquit the accused.
Has the Crown eliminated the reasonable possibility that death resulted from natural causes or spontaneous rupture or epilepsy, unassociated with the actions of the accused and/or Campbell. Almost anything is possible. That is why I have emphasised the word ‘reasonable’. The Crown does not have to eliminate something that is merely possible. Dr Collins does not say spontaneous death or death from unassociated causes was a reasonable possibility, so he does not raise any issue that it was. He referred to those events being only a possibility. Dr Ellis, on the other hand, said it would be an amazing coincidence. It is a matter for you if he was there saying that it was not a reasonable possibility that death resulted from a spontaneous unrelated rupture of the aneurism.
If, on the other hand, you are satisfied beyond reasonable doubt that the cause of the death was either number 1 or number 2, that is to say the assault upon the deceased or the raising of the blood pressure as a result of what was happening, then you are entitled to find that it was the act of the accused or the act of Campbell for which the accused was criminally responsible that caused her death”.

32   At the next short adjournment after the trial judge had delivered this part of his summing-up, objection was taken by counsel for the appellant “in respect of your Honour’s summing-up of Dr Collins’ evidence as to reasonable possibilities”. It is clear from the terms of the discussion between the trial judge and counsel in the absence of the jury, that the only part of what his Honour had said which was objected to was the part in which his Honour had said:-

“Dr Collins does not say spontaneous death or death from unassociated causes was a reasonable possibility, so he does not raise any issue that it was. He referred to those events being only a possibility”.

33   After the discussion with counsel for the appellant, the trial judge decided not to alter what he had said to the jury.

34   Near the conclusion of the summing-up the jury asked same questions, one of which is relevant to the grounds of appeal now being considered. This question was:-

“What constitutes intent to murder and on the way the jury might approach the matter of the cause of death?”

35   In answering this question the trial judge said:-

“Now, on 4. The cause of death. The Crown in this case cannot establish the precise act which caused the death of the deceased. All it can prove is that death, on the view of Dr Ellis, resulted from bleeding into the cranial cavity and on the evidence of Dr Collins, if you accept that, was unascertained. The Crown must eliminate any reasonable possibility that death resulted otherwise than as a result of the assault upon the deceased. If the Crown does not establish beyond reasonable doubt that it was the act of the accused that caused the death, then you must acquit the accused”.
***
“Now, the death is described as arising in three alternative ways; 1. The trauma to the head which resulted in the intracranial bleeding; 2. The fright or fear of the assaults which occasioned a rise in blood pressure resulting in rupture of the aneurism; 3. From natural causes or the spontaneous rupture of the aneurism, unassociated with actions of the accused or the accused with Campbell.
If you think that it was reasonably possible that it was number 3, that is to say from natural causes or spontaneous rupture or epilepsy, unassociated with the actions of the accused or of the accused and Campbell, then you must acquit the accused.
Has the Crown eliminated the reasonable possibility that death resulted from natural causes or spontaneous rupture or epilepsy, unassociated with the actions of the accused or the accused and Campbell? Almost anything is possible. That is why I have emphasised the word ‘reasonable’. The Crown does not have to eliminate something which is merely possible. Dr Collins does not say spontaneous death or death from unassociated causes was a reasonable possibility, so he does not raise any issue that it was. He referred to those events being only a possibility. Dr Ellis, on the other hand, said it would be an amazing coincidence. It is a matter for you if he was there saying it was not a reasonable possibility that death resulted from a spontaneous unrelated rupture of the aneurism.
If on the other hand you are satisfied beyond a reasonable doubt that the cause of death was either number one or number two, that is to say the assault upon the deceased or the raising of the blood pressure as a result of what was happening, then you are entitled to find that it was the act of the accused or the act of Campbell for which the accused was criminally responsible that caused her death. So if you are satisfied beyond a reasonable doubt that haemorrhaging caused the death of the deceased and resulted from an assault upon her in one of the ways described, then you are entitled to conclude from the nature of the act itself, that either the accused or both he and Campbell intended to inflict either death or grievous bodily harm and that he is guilty of murder”.

36   All three grounds of appeal were argued together by counsel for the appellant, all of the grounds being based on the same short passage appearing twice in the summing up, which I have quoted in par 31 of this judgment.

37   It was accepted by counsel for the appellant that otherwise the summing up was impeccable, and, in particular, his Honour had been correct, when directing the jury on causation, to tell the jury that what the Crown had to eliminate was any reasonable possibility that death had resulted from some cause other than an act of the appellant and that the Crown did not have to eliminate any possibility at all that death had so resulted. However, it was submitted that in this short passage occurring twice in the summing up his Honour had erred.

38   It was submitted that an important issue in the trial was whether the Crown could prove beyond reasonable doubt that an act of the appellant had caused Mrs Thomas’ death or, differently expressed, whether the Crown could eliminate any reasonable possibility that Mrs Thomas’ death had occurred otherwise than as a result of an act of the appellant. It was for the jury to determine whether any such possibility raised in the evidence was a reasonable possibility. The jury could conclude that such a possibility was a reasonable possibility, even though it had not been characterised as a reasonable possibility in the evidence of any witness.

39   It was contended that in this passage in the summing up the trial judge had directed the jury that, because Dr Collins had not in his evidence characterised the third alternative cause of death, that is death from natural causes or from a spontaneous rupturing of the aneurism, unassociated with any act of the appellant, as being a reasonable possibility, the issue of whether there was a reasonable possibility that death had been caused by this third alternative was withdrawn from the jury or, if the issue was not withdrawn from the jury, the trial judge had directed the jury that Dr Collins’ evidence could not be used by the jury in deciding the issue.

40   I would accept the submissions made by counsel for the appellant that it was for the jury to determine whether any possible cause of death raised in the evidence was a reasonably possible cause and that the jury could decide that a possible cause was a reasonably possible cause, without it being necessary for the cause to have been characterised as a reasonably possible cause by any witness.

41   However, I do not accept the further submissions made by counsel for the appellant.

42   The trial judge did not withdraw from the jury the issue of whether there was a reasonable possibility that Mrs Thomas’ death had resulted from natural causes or a spontaneous rupturing of the aneurism, unassociated with any act of the appellant. In parts of the summing up which I have quoted and elsewhere in the summing up, the trial judge directed the jury to the effect that they could not convict the appellant, unless the Crown had eliminated any reasonable possibility that Mrs Thomas’ death had resulted from natural causes or a spontaneous rupturing of the aneurism. In directing the jury on the issue the trial judge mentioned the possible causes Dr Collins had mentioned in his evidence. In directing the jury on the issue, the trial judge did not reverse the onus of proof. The trial judge consistently told the jury that the onus of proof to eliminate any reasonable possibility rested on the Crown.

43   I am also of the opinion that, when the summing up is read as a whole, it is clear that the trial judge did not withdraw Dr Collins’ evidence from the jury on this issue. On the contrary, he summarised Dr Collins’ evidence at some length in the summing up (pages 190-195 of the summing-up), in a way which has not been the subject of any complaint on the hearing of the appeal. In summarising Dr Collins’ evidence the trial judge referred to all the various possibilities Dr Collins had raised, including a spontaneous rupturing of the aneurism and death from natural causes such as epilepsy, asthma and myocarditis.

44   In the passage in the summing up which has been criticised the trial judge said that “Dr Collins does not say spontaneous death or death from unassociated causes was a reasonable possibility”.

45   This was an accurate comment on Dr Collins’ evidence. In his evidence Dr Collins said that he considered that the cause of death had not been ascertained. When asked by counsel for the appellant about possible causes of death, he gave a number of possibilities. Dr Collins did not assign any degree of likelihood to any of the possible causes he mentioned. Included in his list of possible causes were asthma and myocarditis, although there was no evidence that Mrs Thomas, a woman who was frequently seen by her general practitioner, suffered from either of these conditions.

46   The trial judge then said “so he does not raise any issue that it was”. In my opinion, these words were intended by the trial judge and would have been taken by the jury as a comment by the trial judge on Dr Collins’ evidence. In the context of the whole summing up, including the repeated directions by the trial judge on the elements of the offence charged and the summary by the trial judge of Dr Collins’ evidence, the jury would not have thought that they did not have to decide the issue of whether the Crown had eliminated any reasonable possibility that Mrs Thomas’ death had resulted from natural causes or a spontaneous rupturing of the aneurism or that in deciding that issue they were obliged to disregard Dr Collins’ evidence.

47   In the summing up the trial judge directed the jury that “the facts are your sole responsibility and province; I have nothing to do with the facts”. He used words to this effect several times. Further, he said several times that it was for the jury to decide whether the acts of the accused had caused the death. The trial judge also said with regard to the evidence of Dr Ellis and Dr Collins:-

“The forensic pathologists Dr Ellis called by the Crown and Dr Collins called by the defence are in substantial agreement as to a number of possible mechanisms of death. They disagree in some respects which you may or may not consider significant but it is for you to accept or reject the evidence of those witnesses just as you do in respect of any other evidence”.

48   Later in the summing up the trial judge told the jury:-

“Members of the jury, it is necessary for you to consider all of this medical evidence and take a practical and sensible approach to considering whether or not you are satisfied beyond reasonable doubt that the death of the deceased resulted from the acts of the accused …”.

49   I do not consider that any error by the trial judge has been established and in my opinion the appeal against conviction should be dismissed.

50   An application for leave to appeal against sentence was not pressed at the hearing and should also be dismissed.

51   BELL J: I agree with the reasons of James J.

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